Legal Docket: Homelessness and the Eighth Amendment

NICK EICHER, HOST: It’s Monday morning, May 6th, 2024, and you’re listening to The World and Everything in It from WORLD Radio. Good morning! I’m Nick Eicher.

JENNY ROUGH, HOST: And I’m Jenny Rough. It’s time for Legal Docket.

Today’s case: City of Grants Pass v. Johnson. It’s about ordinances in a small Oregon town designed to curb the growing homeless population. They’re aimed at those who camp on public property.

EICHER: The word camping has a legal meaning. If you’re sleeping with a blanket or other bedding materials on streets, sidewalks, in parks you’re camping. If you’re living in a car, you’re camping. And that matters in this case.

The purpose of the laws is intended to keep the public spaces sanitary and promote health and safety.

Penalties for violators start at $295 fines. If someone continues to violate the ordinances, the fines increase and ultimately result in a criminal trespassing. That comes with thirty days in jail.

The legal question is whether this violates the Eighth Amendment of the U.S. Constitution. You might recall from our death-penalty cases, that it’s the Eighth Amendment that prohibits cruel and unusual punishment. Which strikes me, Jenny, as an odd use of that amendment.

ROUGH: Yes, it strikes me that way too. Eighth Amendment cases typically are about the death penalty, methods of execution, maybe too-harsh sentences on juvenile offenders. Certainly not cases like this.

To get a sense of the case, I went up to Grants Pass. I didn’t find the plaintiff, but I found lots of people in her exact situation. I talked with a woman named Dorothy. She lives near Riverside Park. She’s 53. And she’s very open about her struggles with an addiction to crystal methamphetamines.

DOROTHY: And I’ve been doing it for years. You can smoke it, you can shoot it, you can snort it. It’s an upper.

She smokes it. Or rather, smoked. Past tense.

She says she quit cold turkey two weeks before I met her. Right around the time she arrived in Grants Pass.

DOROTHY: From Texas. Been to Cali. Now I’m here. [Laughs]

Even though Grants Pass is now her home, she has no home and not even a car. She sleeps in a tent. A few local churches and organizations hand them out for free.

DOROTHY: They gave me a tent, a sleeping bag, and helped me with all kinds of stuff because they say that a lot of women out here get raped. It’s not a safe place for women, whether you’re with a man or not.

She’s not exaggerating. Brian Bouteller of the Gospel Rescue Mission says the homeless encampment in Grants Pass is a living hell.

BRIAN BOUTELLER: It’s terrifying. These people are stealing from each other. Robbing each other. Raping each other. There’s so much victimization that goes on out in the parks all the time that nobody wants to sleep at night. So they don’t sleep at night, so they use methamphetamine to stay awake.

Bouteller is the executive director of the mission. When he first came on board, he says, the mission was only a place for three hots and cot.

BOUTELLER: Three hot meals and a place to sleep.

EICHER: But over time, the mission’s emphasis turned to effective compassion: equipping the homeless with life skills, helping them become independent. And to do that, he runs a high barrier shelter. Meaning, there are rules.

No drugs. No alcohol. No cigarettes.

BOUTELLER: So everybody’s up at 5:30.

ROUGH: 5:30 AM, bright and early.

Gospel Rescue Mission in Grants Pass, Ore. Photo by Jenny Rough

EICHER: Chapel attendance twice a day. Work, if you’re able.

BOUTELLER: Help out in the kitchen. Or help out on housekeeping. Or maybe go work in one of our thrift stores.

ROUGH: And no dogs.

That’s one reason Dorothy doesn’t want to stay at the mission. She has a puppy.

And it’s a reason the plaintiff in the case, Gloria Johnson, also refused shelter. 

ROUGH: The city of Grants Pass has a population of about 38,000. And around 600 homeless.

At the encampment near Riverside Park, I watched where I stepped because of discarded needles. The playground was abandoned most of the day. A lot of parents don’t feel safe bringing their kids there anymore. The city had fenced off the water spray area, because the homeless were using it for a shower. This is one of many encampments.

At this one, I counted about 30 large tents near a bridge. The parking lot had maybe a dozen people living out of their cars and vans. These vehicles were stuffed to the brim with possessions.

And in this specific case, there are two plaintiffs: Both homeless individuals who live in their vehicle.

EICHER: They contend the ordinances are cruel and unusual, that Eighth Amendment contention. And so far, it’s been successful. The lower courts issued an injunction on the city to prevent enforcement unless it could accommodate all the homeless people in Grants Pass.

ROUGH: In finding the ordinances violated the Eighth amendment, the lower courts relied on Supreme Court precedent from 1962. A case called Robinson versus California. There, the defendant faced 90 days in jail for violating a California statute that said no person shall be addicted to the use of narcotics.

The Supreme Court said that law violated the Eighth Amendment, because you cannot punish a person’s status. The status of being an addict. But the court did note that punishing a person’s conduct is different.

So, possessing or using illegal drugs, that’s okay to punish. But sending a person to jail simply for being addicted, not okay.

EICHER: Back to this case. Lawyer Theane Evangelis argued on behalf of the City of Grants Pass defending the city ordinances. She tried to distinguish this case from the Robinson precedent by saying the anti-camping laws do target specific conduct.

EVANGELIS: The conduct of establishing a campsite, which includes making a bed with bedding.

But Justice Elena Kagan wasn’t buying it.

JUSTICE KAGAN: But your ordinance doesn’t just prohibit that. Your ordinance prohibits a single person, who is homeless, so does not have another place to sleep. It’s a single person with a blanket.

EVANGELIS: Sleeping in public is considered conduct.

And a biological necessity, Justice Kagan pointed out.

JUSTICE KAGAN: It’s sort of like breathing. I mean, you could say breathing is conduct, too. And for a homeless person who has no place to go, sleeping in public is kind of like breathing in public.

ROUGH: The discussion kept circling back to the fact that sleeping outside necessarily arises from homelessness. But lots of conduct might be considered biologically necessary. That’s one of the things that makes this case so difficult.

EICHER: Justice Ketanji Brown Jackson wondered what about an ordinance that prohibited eating on public property.

JUSTICE BROWN: And the city, for, you know, very rational reasons, has determined that when people eat outdoors, it creates problems with trash and rodents, and the like, and so it bans eating in public places and it punishes violators.

ROUGH: Or what about laws that prohibit public urination? That came up a lot at oral argument. Here’s an exchange between Justice Amy Coney Barrett and Kelsi Corkran, who argued for the homeless.

JUSTICE BARRETT: There’s no facilities available, and a homeless person has no place else to go.

CORKRAN: You might have, I mean, there are commercial establishments. I-I-don’t.

JUSTICE BARRETT: Take my hypothetical. Commercial establishments don’t want non-patrons coming in to use the facilities, there are no public facilities, and it’s a generally applicable rule that says no public urination.

CORKRAN: So I think there one distinction between urination and defecation and sleeping is that sleeping outside is part of the definition of homelessness, right? Homelessness is lacking a fixed, regular, nighttime address. So the sleeping prohibition goes more directly to the status of homelessness.

So, it’s a slippery slope. Will the court limit the 1962 Robinson precedent solely to the status of addiction? Or will it extend the Robinson precedent to cover homelessness and sleeping outside?

EICHER: A few other things of note: Justice Jackson mentioned that the state of Oregon has enacted a statute. It requires cities to adopt reasonable regulations that govern the time, place, and manner of camping restrictions for those who are homeless. And she wondered if that made this case moot.

ROUGH: Yeah, she brought that up a few times.

She also brought up a debate about “cruel and unusual.” Grants Pass attorney Evangelis argued this:

EVANGELIS: These are low-level fines and very short jail terms for repeat offenders. … This is not unusual in any way. It is certainly not cruel.

But Justice Jackson had a different view.

JUSTICE JACKSON: You know, it seems cruel and unusual to punish people for acts that constitute basic human needs.

Now, another possible outcome: The court could say the Eighth Amendment isn’t the right framework at all here. The Eighth Amendment was designed to govern what methods of punishments are permitted. Not what kind of conduct is required for a crime. Perhaps this case should be relocated under a Fourteenth Amendment due process analysis. That argument was sort of touched on, but not in depth. So I’m not sure a majority of justices will go for it.

EICHER: The United States government also took a position. Deputy Solicitor General Edwin Kneedler told the court it should require local law enforcement to look at each individual’s circumstances, to see if the person does or doesn’t have an alternate place to sleep.

Justice Brett Kavanaugh seemed to agree that municipalities, rather than federal courts, are best suited to manage homeless policy on a day-to-day basis.

He also noted that the state of Oregon has a so-called necessity defense. Those who are cited for violations can show their illegal conduct couldn’t be avoided by showing there was no alternative shelter.

JUSTICE KAVANAUGH: If a state has a traditional necessity defense, won’t that take care of most of the concerns, if not all, and therefore avoid the need for having to constitutionalize an area and have a federal judge superintend this rather than the local community...

ROUGH: One odd thing about the Grants Pass case is how many times a party or justice assumed the homeless in Grants Pass had no place else to go.

It’s true that there are more homeless individuals than available shelter beds. But it’s worth noting, the lower court here, the Ninth Circuit, did not count empty beds at the Gospel Rescue Mission. Because of its gospel affiliation, the Ninth Circuit cites establishment law concerns.

Even so, executive director Brian Bouteller says the mission invites people all the time.

BOUTELLER: I’ve got 33 men in the men’s facility right now. So that’s less than half full. I’ve got maybe, maybe 17 women right now in our 60 bed facility.

EICHER: So there is room at the inn.

And that’s this week’s Legal Docket.

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